Justice William J. Brennan: Mr. Walker, I'm not certain whether under the California system, there might be a transfer proceeding without first having an adjudicatory proceeding, may there or not?

Mr. Robert L. Walker: Oh, certainly.

Justice William J. Brennan: Does that happen?

Mr. Robert L. Walker: Yes.

As a matter of fact, in 1972 the California Supreme Court in a case called Donald L. , which is cited in our brief, stated that the preferred practice in California is to hold a fitness hearing before the adjudicatory hearing.

So, not only does that happen, that is now the customary practice in California.

It is not required as a matter of statutory law, but in the great majority of cases pursuant to that California Supreme Court decision that is --

Justice William J. Brennan: Well, when that practice is followed, does that avoid this --

Justice Byron R. White: Well, doesn't if they keep jurisdiction and then adjudicate them, and then they use authority rejects it, turns them back.

Mr. Robert L. Walker: Well, that doesn't bear on the question of whether the fitness hearing should come before or after the jurisdictional hearing.

Justice Byron R. White: Exactly but having it before doesn't cure that problem.

Mr. Robert L. Walker: No, that's a separate problem.

Justice William J. Brennan: No, but if you have the fitness hearing and it's decided at the fitness hearing to transfer, then there's never any adjudication?

Mr. Robert L. Walker: That's correct.

There's never an adjudication and --

Justice William J. Brennan: And then we don't have this double jeopardy problem?

Mr. Robert L. Walker: Correct.

Justice William J. Brennan: Well then why, what I'm trying to get to, why should we ever have a double jeopardy problem?

Why don't they always have the fitness hearing first?

Mr. Robert L. Walker: I think they should always have the fitness hearing first.

It just so happens that in this case, they decided to hold the jurisdictional hearing first.

I don't think there's any justification for that procedure.

As a matter of fact, Mr. Justice Brennan, the -- all of the authorities in the juvenile area including the National Council and juvenile court judges, the National Council in Crime and Delinquency and all of the model statutes and Acts which addressed this question state that the preferred practice from the standpoint of the best procedure for the juvenile and for the juvenile court is to hold the fitness hearing first.

Justice William J. Brennan: I take it that the fitness hearing, if he's had a prior record, the judge who presides at the fitness hearing learns of the prior record?

Mr. Robert L. Walker: That is true.

Justice William J. Brennan: And then suppose, he decides not to transfer him and then proceeds to the jurisdictional hearing knowing of the fellow's past record, are any problems raised by that?

Mr. Robert L. Walker: Yes.

What the California Supreme Court has said in that instance is that the judge must disqualify himself --

Justice William J. Brennan: And transfer to another jury?

Mr. Robert L. Walker: -- and that is not a serious problem in California nor is it a serious problem in most jurisdictions.

In California, the juvenile court is just a branch of the superior court, so it's a very simple matter for another superior court judge to come in and hear the matter.

Justice Potter Stewart: Surely there must be counties up on the -- those northern counties near state though that don't have so many superior court judges in the county?

Mr. Robert L. Walker: That is correct.

There are some smaller counties that might only have one superior court judge.

Justice Potter Stewart: Right.

Mr. Robert L. Walker: However, in California we have a procedure where a superior court judge can be affidavit -- excuse me, can be disqualified without cause, and so it's very common for judges from adjoining counties to come in and sit on those cases.

Justice William H. Rehnquist: But that is something of a burden in counties like the CRR counties and places where you only have one superior court judge?

Mr. Robert L. Walker: Yes.

There's no question that it would be a burden.

I don't think that it would be an insuperable burden or even a considerable burden.

I doubt that those counties account for very many transfer hearings.

As I mentioned yesterday, only 1% of the delinquency cases result in transfer and the great majority of those cases comes from the urban counties.

Justice Potter Stewart: We're talking about cases in which there's not a transfer.

We're talking about the 99% of the cases where there's --

Mr. Robert L. Walker: Wherever --

Justice Potter Stewart: -- jurisdictional hearing and not a transfer.

Mr. Robert L. Walker: Correct.

Justice Potter Stewart: I mean, a transfer hearing and not a transfer hearing.

Mr. Robert L. Walker: Yes, but my statement would also apply to both cases as well.

Justice Potter Stewart: Well, except its 99%, not 1%.

Mr. Robert L. Walker: Well no.

I don't think that's true.

The 99% of the cases would not involve transfer hearings.

There's a very, very small percentage of the cases in California in which there's a transfer hearing because for example a minor must be over the age of 16.

If any minor's over the age of 16, there cannot be a transfer hearing.

Justice Potter Stewart: If he's under 16.

Mr. Robert L. Walker: Under 16, excuse me.

And in addition, in most cases where a minor is not charged with a serious offense where he does not have a previous record, a transfer would not even be considered as a possibility.

Justice William H. Rehnquist: Do you have any statistics as to the percentage of total juvenile cases and the percentage of -- in those that have transfer hearings?

Mr. Robert L. Walker: Unfortunately, the only statistics we have go to the number of cases that are actually transferred.

Justice William H. Rehnquist: Rather than where they have the hearing, isn't it?

Mr. Robert L. Walker: That's correct.

There was one point which came up during argument yesterday that I think bear us some clarification.

We are not contending of course that the jeopardy attached at the fitness hearing.

We're saying the jeopardy attached at the trial in the juvenile court, which is called the jurisdictional hearing, and at the trial in the adult court.

And of course this Court has held in Collins against Loisel that jeopardy does not attach at a preliminary hearing because that hearing does not involve an adjudication of guilt.

Similarly, jeopardy would not attach at a fitness hearing, nor would jeopardy attach for example at a penalty hearing in a death penalty case because that hearing would be in the nature of a sentencing or disposition hearing, rather than an adjudicatory hearing.

This does not mean that evidence relating to the offense would be inadmissible to fitness hearing.

It simply means that that evidence would be only relevant to the question of whether the minor should be retained in the juvenile system, or transferred to the adult system.

Now, petitioner relies quite heavily upon this so called theory of continuing jeopardy.

And as I understand that theory, it insists that the initial proceeding must culminate in a final disposition of the case before a second jeopardy could attach in the second prosecution.

Now, just yesterday in opinion issued by this Court, United States against Jenkins, this Court in a unanimous opinion rejected the broad type of continuing jeopardy theory which has been espoused by petitioner and stated that that theory which was originated in a dissenting opinion by Justice Holmes in the Kepner case, has never been adopted by a majority of this Court.

Justice William H. Rehnquist: But in Kepner though, the person had been found innocent originally, hadn't he?

Mr. Robert L. Walker: That is correct.

That was an appeal from an acquittal.

But I think that the reasoning of Kepner and of a number of the other cases involving the continuing jeopardy principle demonstrate that that principle is limited to a situation where the prosecution -- excuse me, where the defendant has appealed.

And where there has been a reversal on appeal and where there is a re-prosecution after that reversal.

That is not the same situation as we have in this case.

Garry Jones did not ask to be retried in adult court.

It's certainly arguably fair in the case of -- a case where the defendant actually asks for his prosecution to be reversed for the people to vindicate their rights by retrying him if indeed he does obtain the reversal which he sought.

But here, we have an entirely different situation, the case where the reversal was not initiated or sought by the defendant.

Now as I --

Justice Byron R. White: I gather the California Supreme Court has adopted the continuing jeopardy theory, at least for the purposes of the California Constitution.

And also in Brian ruled on it for purposes of the Federal Constitution?

Mr. Robert L. Walker: Yes, that's true.

They have accepted the continuing jeopardy theory in this context.

Now, it seems to me that the continuing jeopardy theory, at least this broad type of continuing jeopardy theory espoused by petitioner, is inconsistent with a number of decisions by this Court in a whole line of cases where this Court has held that where an initial prosecution is aborted for example by a mistrial brought about by the prosecutor, or improperly by the court that they are -- even though there has not been a final culmination of the initial proceeding, nevertheless jeopardy attaches for the purpose of barring a second prosecution.

If this Court were to reverse the Ninth Circuit in this case, I would suggest that it would be undermining a number of decisions and very basic policies that are fundamental to double jeopardy protection.

Justice William J. Brennan: Well, Mr. Walker though all those cases of course are adult cases.

I take it our approach to the application of juvenile system of some of the guarantees that otherwise are applied to the -- in cases in adult prosecutions.

We have to take into account, don't we, the special values of the juvenile system and the extent of which applying those double jeopardy principles to the juvenile system may impair its effectiveness?

Mr. Robert L. Walker: Well, I'm not certain that you have to take that into account for the reason that this --

Justice William J. Brennan: Well, we certainly did as to the jury trial in McKeiver.

Mr. Robert L. Walker: Yes.

Justice William J. Brennan: And Winship suggested that, didn't it?

Mr. Robert L. Walker: Yes.

The difference between this case and Winship call to McKeiver is that in this case, the minor has been convicted in adult court of a felony and suffers from all the disabilities of a felony conviction than any other person in California would suffer whether he's a juvenile or an adult which --

Justice William J. Brennan: Well, I'm thinking particularly the determination whether or not we should or shouldn't, for this purpose, adapt the continuing jeopardy theory.

Mr. Robert L. Walker: Well, what I'm suggesting Mr. Justice Brennan is that if you adapted a continuing jeopardy theory in this case, on the theory that this is a juvenile case that I think you would of necessity, it would also be applied in the adult court context, because this minor suffers all of the same disabilities for any adult would suffer who has been convicted of a felony.

Under California law, Garry Jones for example, cannot have his record sealed to where as if you were adjudicated delinquent, he would have a right to have that adjudication --

Justice Byron R. White: But your California court thought that holding in Brian, thought that saying that there was jeopardy and this sort of a situation would undermine the juvenile system in the sense that judges would be less more likely to transfer to adult courts, and to direct out of the juvenile system more a larger percentage of juvenile cases.

Mr. Robert L. Walker: I agree that the California Supreme Court made that statement.

I would suggest, Mr. Justice White, that that --

Justice Byron R. White: Well, you know more about how your system works than we do.

Mr. Robert L. Walker: Yes.

But it's the same California Supreme Court, which interestingly enough, held that Donald L. that the procedure that we're advocating is preferred procedure.

I would suggest for that statement in Brian was colored by the --

Justice Byron R. White: Well, I think that's consistent and I think that's consistent enough, just because this would be the preferred procedure and you have to hold the transfer hearing first, wouldn't avoid the double jeopardy problem that arose in Brian.

Mr. Robert L. Walker: Right.

I think that the California statement in Brian really was founded upon the peculiar factual situation where a minor had actually consent of the California Youth Authority, and was transferred back to juvenile court because they decided he -- they didn't have enough time to rehabilitate him and he was incorrigible.

And then they decided even though he had already begun his treatment program as a juvenile to transfer him for another prosecution.

Now, I would suggest for that that's perhaps an even more flagrant violation of a double jeopardy guaranteed than we have in this case.

Justice Byron R. White: Well, I think you would, yes.

And I would also think that however if you upheld that, this one would be a fortiori.

Mr. Robert L. Walker: Yes, I agree.

I obviously don't agree with the Brian decision.

But turning to some of these policy reasons concerning the juvenile court, which you brought up Mr. Justice Brennan, it's our position that if you apply the double jeopardy protection in this context, you will actually be enhancing the fundamental fairness of the juvenile court system.

Whereas in McKeiver, this Court felt that that system would be threatened.

For one thing, this Court has frequently emphasized the absolute necessity of a juvenile court system operating in an informal manner.

And by an informal manner, I think that what was meant was that in most juvenile cases, the juvenile if he's indeed guilty will come in and admit his transgression.

There will not be even the necessity of a formal adversary hearing with counsel and all the other trappings.

And then the Court will get on with its primary business, which it is to rehabilitate the juvenile.

Now, that policy goal of informality is really largely frustrated.

If the juvenile contests the petition and decides to stand trial, in that case, he will be represented by counsel.

It will be a formal adversary hearing.

Now, I would point out that if you hold the jurisdictional hearing first, the minor does not, at that point, know whether he's going to be retained in the juvenile system or ultimately transferred to the adult court system.

So he will, as a consequence, be extremely reluctant to admit his guilt.

As a result of that admission, he may later find himself in state prison.

Indeed the volume on juvenile court practice, which has been published by the California State Bar to advice juvenile court practitioners on how to handle these kinds of cases, advises counsel not to encourage the minor to talk freely with the probation officer until he knows whether the juvenile will be retained in the juvenile system or transferred.

So that policy goal will be totally frustrated if you don't hold the fitness hearing first.

Secondly, the juvenile will be kept in a continuing state of anxiety, insecurity, unless you hold certification hearing or a transfer hearing initially.

We believe that from the rehabilitative point of view it's extremely vital that the juvenile know whether he's going to be treated as a juvenile or as an adult.

Certainly, this Court has found that the appearance as well as the actuality of fairness is crucial in terms of the rehabilitation of a juvenile.

And from a standpoint of a minor, he can't very well feel that he is being dealt with fairly if he is being exposed to a double prosecution, which he knows has been held to be repugnant in the case of even the most hardened criminals.

Chief Justice Warren E. Burger: But in this fitness hearing, is the juvenile not going to be reticent about discussing the details of his conduct for fear if he does discuss it, it will lead to his transfer?

Mr. Robert L. Walker: That's a possibility.

Chief Justice Warren E. Burger: Isn't it a very great likelihood more than a possibility?

Mr. Robert L. Walker: Well if --

Chief Justice Warren E. Burger: If he thinks that the truth of the matter will have an adverse impact on the judge in terms of making the decision to send him to an adult court.

If he is either very bright or well advised, he's not going to talk, isn't that right?

Mr. Robert L. Walker: That may be true.

But I would hasten to point out that after that fitness hearing is conducted, and if the judge determines to retain the minor in the juvenile system, then the minor will rather freely in most instances, discuss his case with the juvenile probation officer or with the judge.

Chief Justice Warren E. Burger: After the decision on fitness has been made.

Mr. Robert L. Walker: Right and the fitness -- the decision on fitness would be made at a very early point in the proceeding.

As I pointed out, it is not a full trial and normally it could be made rather soon after the juvenile is taken into custody by the probation department.

Justice Lewis F. Powell: Mr. Walker, I still can't quite visualize how you avoid having what in effect is a full adversary trial if the juvenile and his counsel wished to have it.

I think you agreed yesterday, he would be entitled to counsel.

You're representing the juvenile at a fitness hearing, the juvenile persuades you that he didn't commit whatever the offense may be with which he is charged.

If you do your duty as a lawyer, wouldn't you try to produce witnesses to satisfy the juvenile judge if you thought there was a chance of transfer that he had not committed the offense and wouldn't the state then put on his witnesses to refute your testimony, and wouldn't it all end up being an adversary hearing?

Mr. Robert L. Walker: I -- no, Mr. Justice Powell, I do not believe so.

I have seen a number of transcripts from California where indeed the juvenile's counsel has put on some evidence.

But that evidence normally will be character witnesses or evidence about the juvenile's rehabilitation.

Occasionally, in a rare case, counsel may even produce someone from California Youth Authority to testify that this juvenile can be dealt with as a juvenile, is extremely rare and unusual.

In fact, I've never seen the case in California where a juvenile would put on a defense at the fitness hearing.

For one thing, he realizes that he will have an opportunity to put on that defense later.

And he doesn't want to tip his hand, so to speak, to reveal his entire defense to the prosecution at that early stage.

I've even seen case where the Court has refused to hear evidence going to a jurisdictional fact stating that that was irrelevant under California law.

Justice Lewis F. Powell: If a judge took that position, would that nullify the effectiveness or the validity of the transfer hearing?

Suppose the judge just said “I'm not going to hear any evidence that pertains to whether or not the juvenile committed the offense.”

Well I think that some -- I don't think it would negate it.

I think there's still the question of the juvenile's particular amenability to treatment programs available through the juvenile court.

I think that in most instances, the judge would allow in some evidence pertaining to the crime such as he may want to consider whether the crime was of a particularly heinous character, or whether it's a very serious type of offense.

But in most instances, the judge will say “If the juvenile is charged with murder, he's charged with a robbery or rape,” that's a serious crime and that's enough from the standpoint of the California statute.

I point out in California, if the legislature has not written a probable cause requirement into the fitness statute, which they could've done, which has been done in some states.

Justice William J. Brennan: But what's the practice Mr. Walker?

Surely, there must be some evidence before this determination that he's to be transferred that he did commit some crime, isn't it?

Mr. Robert L. Walker: The evidence that normally is introduced is police report.

Occasionally, there might be some other evidence.

The police report is admissible to fitness hearing in California because hearsay is allowed to come in.

Justice William J. Brennan: Well, what does that establish?

Mr. Robert L. Walker: That establishes so and so, you know, says --

Justice William J. Brennan: Nothing more than just a charge, isn't it?

Mr. Robert L. Walker: That's correct.

And normally, in California that's considered to be sufficient.

This may seem to be a peculiar procedure, but it is a procedure which is adapted in the great majority of jurisdictions, which only three jurisdictions in the entire United States require a showing of delinquency prior to a transfer.

And there are some other jurisdictions which require a showing of probable cause.

But the great majority of jurisdictions require neither at the fitness hearing.

Justice Potter Stewart: How many jurisdictions in addition to California provide for a transfer hearing after a filing of delinquency?

Mr. Robert L. Walker: Well, there are three jurisdictions which require the delinquency hearing be held first; Massachusetts, West Virginia and Alabama.

There are 19 jurisdictions that require the fitness hearing to be held first.

And it's a little bit questionable about what is required in the other jurisdictions.

Justice Potter Stewart: But the others seem to be like California.

They permit it either -- permit it either to come in either order?

Mr. Robert L. Walker: Permit it either way.

However, it would seem first of all from the absence of cases challenging procedure on double jeopardy grounds.

And also from the fact of the legislatures have not even required in some jurisdictions, a probable cause requirement, or another jurisdictions, the delinquency finding.

But the usual practice in those jurisdictions is to hold the fitness hearing first.

And that's recommended, as I've said, by all of legal commentators except one, and by all of the model codes.

Justice Potter Stewart: The writer of the article in the University of Toledo Law Review disgracefully --

Mr. Robert L. Walker: That is the one commentator that I was referring to, yes, Professor Karr.

Justice Byron R. White: Just so I have it straightened up.

When do you say that the jeopardy attaches here, at the beginning of the hearing or at the end of it, or when he was adjudicated?

Mr. Robert L. Walker: Well, our position is, the jeopardy attaches at the jurisdictional hearing in juvenile court when the first witness is sworn and begins to testify.

And that likewise --

Justice Byron R. White: That's at the adjudicatory hearing?

Mr. Robert L. Walker: Right, the adjudicatory hearing.

And that jeopardy then attaches in the criminal proceeding also when the first witness has sworn and begins to testify.

Justice Byron R. White: But the -- it wouldn't -- so the judge, if he even starts the adjudicatory hearing, according to you, must either keep him in juvenile court or dismiss him?

Mr. Robert L. Walker: That's right.

And the experts tell us that there's absolutely no reason why that decision can't be reached before the adjudicatory hearing.

And as I've pointed out, this is the practice in 19 of the 22 jurisdictions which require of a hearing to be held at either one point or another.

This case is a federal habeas corpus action brought by award of the California Youth Authority who is currently in constructive custody on parole.

It presents into Court in question under the Double Jeopardy Clause of the Fifth Amendment as applied to the states to the Due Process Clause of the Fourteenth Amendment and this question is whether a juvenile such as the respondent Jones is placed twice in jeopardy when the juvenile court orders his trial as an adult after an adjudication of delinquency and upon a finding that he's unfit for treatment as a juvenile.

The facts in this case are not in dispute.

In a petition filed in the Los Angeles County Superior Court, respondent Jones was charged with the commission of an act which if committed by an adult would have constituted a robbery under California law.

At a jurisdictional or adjudicatory hearing on this petition, respondent Jones was found to have committed the robbery alleged in that petition.

We submit as far as this case is concerned to the Court that we treat this particular proceeding as a trial and I don't think there is any question of our agreement between the parties on that point that the jurisdictional or adjudicatory hearing is in every sense a Court trial.

After this adjudicatory or jurisdictional hearing, a second hearing was held known as the dispositional hearing and at this hearing, the juvenile court had what amounts to four choices under California law.

He could place the juvenile on probation. He could commit the juvenile to a juvenile institution within the jurisdiction of the juvenile court, in other words, a county camp for juveniles on one of the other county facilities available to a juvenile.

He could order a commitment to the California Youth Authority or he could do what he did in this case, exercise his power under Welfare and Institutions Code Section 707 and that is transfer the case to the adult court for trial of the juvenile as an adult.

Justice Potter Stewart: And these four alternatives were entirely within his discretion with these?

Mr. Russel Iungerich: All four alternatives are within his discretion under California law although they occur in separate divisions of the code of the Welfare and Institutions Code.

Justice Harry A. Blackmun: What is the age limit, 18 in California?

Mr. Russel Iungerich: It's 18 at this time, yes Your Honor.

I believe it was 21 at the time the statute was amended subsequent to this particular juvenile's transfer but he was 17 at the time of his transfer.

Justice Harry A. Blackmun: And if he chose the alternative of incarceration, how long could he imprison him, up until what age?

Mr. Russel Iungerich: Well, I believe up until age 26 depending on whether or not there is a -- ultimately a proceeding under the -- if he was committed to the Youth Authority and he was ultimately came back at age 21 and was found that he's still constituted a danger to society under the particular sections involved in the Youth Authority, he could technically be committed up until age 26, I believe at that time.

Justice William J. Brennan: What kind of hearing is the transfer here?

Mr. Russel Iungerich: What type of hearing is the transfer hearing? Well basically, I think that transfer hearing is set out in the case of Jimmy H. In other words, there are number of factors to be considered.

The first factor, of course the factor that's expressly precluded is just taking a look at the gravity of the offense alone.

California statute expressly provides that that alone is not enough for transfer.

What the Judge will look at are three factors under the Jimmy H. case and those three factors are, first, he takes a look at the circumstances of the offense that is involved and the circumstances of the offense, the circumstances that surround the offense in the particular case.

He also takes a look at the juvenile's prior conduct.

In other words, any of his behavior pattern whether or not as in this case he had committed prior crimes that came within the juvenile court jurisdiction.

In this case, respondent Jones had committed two prior armed robberies.

Hence, providing all the California Juvenile Court proceedings and of course that isn't the mandate of course as we would read the combination of Gault and Kent.

In addition to looking at the particular circumstances of the case, of course he's going to look at the minor's degree of sophistication would be the third factor and his -- the extent of his criminal involvement in this particular case.

Justice William J. Brennan: Are there findings in support of the order of transfer?

Mr. Russel Iungerich: Are there findings here?

Justice William J. Brennan: Are there findings in these transfer proceedings?

In other words, in the sense of findings of fact and conclusions of lost such as you'd have on a motion for summary judgment.

Basically, the report, the probation report if it's held at the end of the transfer hearing as in this case is before the judge.

He has the testimony and at that point he makes his decision and he may state the factors that guide him as far as transfer.

I don't think there is any express requirement in California Law that all those factors be placed on the record at the present time.

Justice Potter Stewart: But in this case, were there findings?

Mr. Russel Iungerich: Well, I think it's quite clear in this case as far as the disposition hearing.

The findings were that the primary reason that he felt that this man should be transferred was the fact that he had committed two other armed robberies.

That he had been committed to juvenile institutions in both of those cases and that basically, he wasn't amenable to the juvenile court process for that reason.

I think it's a clear case of non-amenability as under any standard that would be applied in that type of hearing.

Justice William J. Brennan: I take it if there were dispute of fact as to one of these important notes, there would be a finding?

Mr. Russel Iungerich: If there was a dispute of fact, I would assume that the judge would state his reason as to why he was finding one way or another but under the California rules as this would come up appeal of course.

If there was evidence on the record that would support the ultimate result that the judge reached, then of course those implied findings would be what the California Court would rely on in that situation.

I think though that basically, the point that you brought out here is one that I think is very important as far as consideration the nature of the question involved here.

Basically, what double jeopardy means in this particular -- in the context of this particular case is that a hearing is foreclosed at any point except prior to the adjudicatory hearing on the question of transfer and the question that really come -- the double jeopardy issue really is determinative of as whether or not the state should be permitted the flexibility to have the hearing either before or after and I think arguments can be made for a preferential -- for a preference one way or another depending upon the individual case.

I submit that where you have a serious felony as robbery or murder or rape, you have a likelihood a contest of fact and although technically we're not consider quilt or innocence at the transfer hearing.

Nevertheless, the judge is going to want to know the facts involved in this -- the questions will need to go into the same question of fact that would be involved --

Justice William J. Brennan: -- goes to inquiries in one proceeding?

Mr. Russel Iungerich: What?

Justice William J. Brennan: Is there ever a combination of those inquiries in one proceeding?

That is a determination of the offense and a determination of the --

Mr. Russel Iungerich: No, that has been expressly ruled out that you can't make the determination in one proceeding.

What we do is we save the possibility of having three proceedings and we only have two if we permit the alternative, the disposition or alternative of allowing transfer after trial.

Basically what you have if you don't have the disposition or alternative after trial, what were the advantage of the disposition or alternative if there are contested issues.

As to minor's involvement in the crime, as to the circumstances surrounding his involvement in the crime.

Those usually will be brought before the judge at the adjudicatory hearing and he can rely on what he learned at the adjudicatory hearing to shorten the process when it comes before him on disposition.

Whereas, if you hold this hearing before, you may have actually two duplicate trials, both of which covering the same subject matter and as is conceded by all parties in this case as we agreed, it would in that situation if you hold it prior, you will require two judges because of the judge that's considering the information that comes in, in the social study which is the equivalent of the social -- of the probation report that a criminal judge would receive its sentencing.

He would have many of the hearsay materials that are presented in the probation report that might influence him on the question of sentencing and its felt they should not then preside on the issue of guilt or innocence having heard that matter so you have to have two --

Justice William J. Brennan: -- that that disposition hearing -- the disposition to turn him over to the Youth Authority to decide and then in effect as if it were a sentence is it?

Mr. Russel Iungerich: Yes, it's in the sense I would say that that would be much, it would be tantamount to a sentence in a criminal proceeding.

In other words, if he were committed to the Youth Authority or he were sent to a juvenile institution.

We didn't have that in this case and I think that that's the important factor that indicates why we don't have an application -- a proper application or proper case for the application of the principle of double jeopardy in this case

Justice Byron R. White: Is there a Supreme Court of California opinion concluding that this procedure is not a violation of the California constitutional provision against double jeopardy?

Mr. Russel Iungerich: Yes.

I think quite clearly that that is the position the California Court.

I don't recall whether in Bryan versus Superior Court which is the leading case.

Bryan held that there is no violation of double jeopardy to allow this transfer to take place after the adjudicatory hearing, Bryan cited in our brief.

I do not recall whether Bryan went off on California grounds and I don't think they did discuss the California constitution although that option was available to the court in applying -- in deciding the constitutional question before it.

But basically, the rule in California today is that the hearing may be held either before or after and double jeopardy really comes down to the question, must it be limited only before under the constitutional compulsion of the Fifth Amendment as applied to the states through the Fourteenth Amendment.

I submit that that question indicate -- the resolution of that question really turns on the fact that although respondent Gary Steven Jones was tried twice in this particular case and I submit that the submission on the preliminary transcript of the adult case, he was in effect tried twice and that is the equivalent of a trial under California law because the judge determined all the issues of fact based on the preliminary transcript.

Nevertheless, although he was tried twice, he was not placed in jeopardy twice and I think the critical distinction here is what is the critical question is what is a jeopardy for the purposes of this case because even if jeopardy had attached to the point of transfer and even if double jeopardy applied in the extent of saying that jeopardy does attach in the juvenile court, respondent Jones was not placed twice in jeopardy under the circumstance of this case for the primary reason first that none of the policies behind neither the protections that the -- are incorporated in the double jeopardy provision were violated in this case.

North Carolina versus Pierce, those protections were set out.

The first was that double jeopardy protects against the second prosecution after acquittal and of course I think subsumed in that ground is also what is tantamount to acquittal, the dismissal at some point prior to acquittal where there isn't manifest necessity for the dismissal and the termination of the case.

In this case, there was no acquittal.

There was nothing tantamount if anything what we had here was something that was tantamount to a conviction without a sentence and there's never been a situation where the court has held that it -- where there actually has not been a termination of proceedings, that there was actually a jeopardy at a first jeopardy at that point and the commencement of a second jeopardy where you do have some sort of continuum.

Justice William H. Rehnquist: You wouldn't dispute would you that if the juvenile judge dismissed the charges after this hearing and found them in effect not guilty but then he couldn't be tried as an adult on the same charge.

Mr. Russel Iungerich: Well, under California law of course, under Richard M. versus Superior Court, we are bound under our state law by that principle. In other words, that their jeopardy would attach and that you couldn't retry him if it had been dismissed after the -- after the adjudicatory hearing had commenced.

Justice William H. Rehnquist: Did your court put that on the basis of the federal constitution of the Supreme Court of California?

Mr. Russel Iungerich: That I think is on the basis of both the federal and the state constitution and its clearly on the basis of the state constitution as well and it does constitute an adequate state law ground on that particular situation so we're really not concerned with that point as to whether or not double jeopardy is applicable in juvenile court proceedings per se in this case because the situation involved here is really a bent on question.

We're talking about the rights of this juvenile when he gets to the point that he is actually in adult court.

In other words, we're talking about --

Justice William H. Rehnquist: My question hypothecated that he was in adult court just as he is in your actual case but the difference was that that he'd been acquitted of the juvenile charges.

Mr. Russel Iungerich: He is in adult court and he had been acquitted of the juvenile charge.

In other words, what the District Attorney has done in this case is refilled against him --

Justice William H. Rehnquist: Yes.

Mr. Russel Iungerich: -- in a subsequent case?

Justice William H. Rehnquist: Yes.

Mr. Russel Iungerich: Well, I think that I would reserve that question until a future case because I think there may be some cases pending on this Court's docket.

At this point, I would think that jeopardy at least as far as what this Court might say would have attached in the lower proceeding but I think that's a quite different case from ours because we don't have that problem here and I think the states that has statutes that permits that at least ought to be allowed to defend that in this forum without my conceding away their cases where we don't have that problem involved in California.

Justice Byron R. White: In California -- in California if you try a juvenile in an adjudicatory hearing and he is acquitted or whatever you call that, what do you call that, dismiss or --

Mr. Russel Iungerich: It's dismissed, it would be a dismissal.

Justice Byron R. White: Then could you bring him back and try him again for the same thing in the juvenile court?

Mr. Russel Iungerich: I -- if it's dismissed?

No, under the authority of the case of Richard M. versus Superior Court.

Justice Byron R. White: That's a constitutional rule?

Mr. Russel Iungerich: That's a constitutional rule --

Justice Byron R. White: State plan?

Mr. Russel Iungerich: Under our state constitutional --

Justice Byron R. White: And federal?

Mr. Russel Iungerich: And federal.

It was predicated on both grounds.

Justice Byron R. White: So it s a duo?

Hold it.

So there is jeopardy at -- under the California Law jeopardy attaches?

Justice Potter Stewart: Now, this case after he's transferred to the regular adult court, he could have been acquitted, couldn't he?

Mr. Russel Iungerich: Yes Your Honor.

He will have a second opportunity really in this case.

What we have is a situation where the juvenile is given an opportunity for two adjudications beyond a reasonable doubt and two opportunities for acquittal and the state loses the conviction in effect that they obtained in juvenile court and has put at risk again in adult court of obtaining another conviction by the standard beyond a reasonable doubt.

The difference between the proceedings of course and the reason why we have to conduct a second adult trial is that all of the basic rights that are recorded to an adult criminal defendant have not been incorporated into the juvenile court process, particularly under McKeiver, the right of jury trial and in order to accord the juvenile that those rights before he is actually convicted in adult court, we have to give him the second adult trial as California views the Constitution.

But I think the important point here is that in analyzing the protections of the Constitution that we have no -- of double jeopardy and the protections that it gives, really, what we have here is a situation where if any of the protections that are mentioned in North Carolina versus Pearce apply, it would have to be the protection against a second conviction.

But I think that basically the language, the understanding of that I have of the protection against a second conviction is this, that you actually have to have two separate and distinct risks of punishment and in this case there is one risk of punishment throughout.

When the petition was filed in juvenile court proceedings, at the very beginning of this case in California, the petition -- the respondent was under -- on notice that the possibility of transfer and the possibility of an adult criminal sentence was in that case and until he was actually committed to the facilities of the juvenile court that risk did not depart the case, all at the point that the case is transferred, the only thing that departs the case is not the higher risk of punishment that's involved in the adult criminal proceedings but the lesser punishments that would be involved or the lesser disposition of being kept in juvenile court.

Its really what you might say is the converse of the Green situation in Green versus United States where there in the initial case there was a verdict of guilty with regard to second-degree murder which meant an implicit acquittal of first-degree murder.

There after the state tried to retry Green for first-degree murder unless held that there was some type of implicit acquittal, you could not be retried under the Double Jeopardy Clause for the higher crime.

We have a converse situation here that the higher penalty never departed the situation.

There is no new risk of punishment involved because the same risk carried on throughout.

Justice Byron R. White: But there's a different consequence of conviction other than punishment?

Mr. Russel Iungerich: Certainly, there is a different consequence to the conviction --

Justice William J. Brennan: Namely?

Custody will be different?

Mr. Russel Iungerich: The custody will be different -- well, it can be the same as in this case because what actually happened was the adult court decided to use the facilities again of the California Youth Authority and its possible to both juvenile court and adult court may use that commitment to --

Justice William J. Brennan: That's looking backward.

That's looking backwards.

They could have put him somewhere else.

Mr. Russel Iungerich: They certainly.

They could have put him on a state prison.

Justice William J. Brennan: And now we've got a conviction as he would not have had as the case ended in the dual process --

Mr. Russel Iungerich: Certainly, but I think that that is basically a question of policy for the state courts to determine.

After all, a --

Justice Byron R. White: But this is a matter of fact, it is different.

Mr. Russel Iungerich: It is --

Justice Byron R. White: It has different consequence.

Mr. Russel Iungerich: It has different consequences.

Justice Byron R. White: -- may affect lots of things.

Mr. Russel Iungerich: And there are certainly collateral consequences that are involved that with a criminal conviction that are not involved --

Justice Byron R. White: And also he can't be tried twice?

Mr. Russel Iungerich: He has been tried twice.

Justice Byron R. White: Do you both agree that that the adjudication is a trial?

Mr. Russel Iungerich: Mr. Justice White, he has to be exposed at two different times to separate indistinct possibilities of punishment.

Justice Byron R. White: So you say just the fact that he's tried twice --

Mr. Russel Iungerich: Is not enough.

Justice Byron R. White: Is not enough so that on your theory, I take it that the state should always be able to appeal as long as it agreed not to punish him any more than the sentence that was imposed the first time?

Mr. Russel Iungerich: I do not think we're settled with that type of an argument Your Honor.

I would not make that and take that position.

I don't think that the idea of continuing jeopardy could be extended.

In other words, we've made a policy decision I think and our constitutional law in this country that after a man has been acquitted, he cannot be tried again.

We do not have an acquittal in this situation, however, when we need to have that type of finality.

What we're really talking about is a separate type of court system which is a juvenile court system which is basically making a determination whether or not this juvenile should actually not be treated as an adult and because of its nature of his crime and his prior background, they feel that in order to rehabilitate him, he actually needs to be exposed to the criminal process because they have exhausted their facilities.

We have I think quite different policy considerations here than would be involved in a situation where you have a case where a man has been acquitted at a previous time.

Justice Byron R. White: Assume, he went through the juvenile procedure and the entire juvenile procedure was exhausted, when he became what, 21 in your state?

Mr. Russel Iungerich: Yes.

Justice Byron R. White: 21.

Well, at that time you decide that we just have failed with this young man so we're going to now try him as an adult.

Mr. Russel Iungerich: Well, at that point, I don't think -- I think that there's a different question, of course, as to whether or not when they make a final -- I would say under my theory where you have a separate risk of punishment, you have two separate and distinct jeopardy at that point because you haven't had the lower -- you have actually committed the man to the juvenile institution, if you've made a mistake, I think the policy of finality which is inherent in the juvenile -- in the Double Jeopardy Clause should apply at that point and say, well, we can't sentence the man a second time and I think --

Justice Byron R. White: Once it's gone through the dispositional hearing that that should terminate the initial difference.

Mr. Russel Iungerich: The only exception I think that there might be for that is there is the tentative commitment to the Youth Authority where the man may be referred back to the court.

In other words, it's really an extension of the disposition hearing.

At that point, in California, the Youth Authority makes an evaluation of the man and they decide, well, they don't feel they can treat him and they can send him back to juvenile court at that point very much similar to diagnostic studies that aid the court in sentencing.

Justice William J. Brennan: At that's -- at that's the point to transfer him under your law?

Mr. Russel Iungerich: Under that at that point, Bryan says we can transfer him under our law.

Chief Justice Warren E. Burger: You made a point in your brief I belief that if you do not prevail, this will compel the juvenile courts to superimpose on the present procedural structure, a preliminary hearing of some kind in every case that will overburden an already overburdened court but isn't it possible, that is the point you make us --

Mr. Russel Iungerich: Yes, Your Honor.

Chief Justice Warren E. Burger: Isn't it possible recently to identify in advance the cases which might be borderline adult cases and --

Mr. Russel Iungerich: Well, --

Chief Justice Warren E. Burger: -- the preliminary treatment only to those cases?

Mr. Russel Iungerich: Well, I don't think it is clearly a case that you can identify, you'd possibly identify them but you have to have --

Chief Justice Warren E. Burger: Well, you know the man is right but before he begins any proceeding, you know what his prior record is, don't you?

Mr. Russel Iungerich: Yes, the probation department undoubtedly would have his prior record.

Chief Justice Warren E. Burger: And you know the nature of the crime or criminal conduct that he's charged with?

Mr. Russel Iungerich: Yes Your Honor.

Well,

Chief Justice Warren E. Burger: And do you tell me that you couldn't identify in very large percentage of the cases.

Mr. Russel Iungerich: Well, the problem is not identifying.

I think you can possibly spot the transfer case and specially where you got a murder or a robbery, usually the gravity of the offense even tells you something about that although we're not suppose to transfer on that basis.

We're talking about those that this -- any attorney where to sought, when he comes in to transfer hearing, he's going to want to fully trash out all of the issues as to why his client should not be transferred and if he does that, what we're getting off is really two trials and I think that that's the important point to make that there are situations where the juvenile court judge should have the discretion to hear the adjudication phase first and then make his decision on transfer afterward to avoid two duplicate trials before two different judges because what we're doing by applying double jeopardy in this case to cut off transfer as a dispositional alternative will in effect take that discretion away from the judge so that he can maintain his calendar and take those cases where he thinks that he's going to have two contested hearings and may have a situation involving two full trials before two different judges and try them at one proceeding.

Chief Justice Warren E. Burger: What is the percentage -- what's the percentage of cases that are transferred for adult trial, did you know?

Mr. Russel Iungerich: The percentage, it is less than 10% and I -- the exact figure at this point, I don't know because our figures are -- the last figures we had available of course are 1972 figures and the Bureau of Criminal Identification in California hasn't come up with its reports for 73 yet but at that point it was less than 10%.

The point is, with those cases though is that the ones that are considered for transfer and we don't know how many, first of all, there are no statistics on the number of waiver hearings that are actually held in California.

Where transfer is rejected and of course those are the cases that are really going to cause the bottleneck for the juvenile court because where transfer is rejected that's the situation where we're going to have the second trial situation in the juvenile court and actually the problem created for the juvenile court calendar.

I think there's no question, the both sides on this case agree on the fact that the juvenile courts already have overcrowded dockets and by adding this particular -- taking out this possibility of giving the flexibility to actually avoid two duplicate trials in this circumstance may really cut in to their discretion and actually lead to more congestion on their calendars.

I think that as well as the indication that there is no violation of the principles of double jeopardy, I think as well the continuing jeopardy exception would give us an additional peg on which to decide that this case does not violate the double jeopardy provision of the Constitution.

In Price versus Georgia, this held that its prior cases had formulated a concept of continuing jeopardy's -- jeopardy where criminal proceedings against the accused have not run their full course and I think in this case, the proceedings against this individual did not run their full course until he actually went to adult court and there was a determination and an ultimate disposition.

Unlike any other care, there is a link between these two proceedings and the link is the judicial transfer.

It's not a transfer that the prosecution can unilaterally determine as for example, filing a new case against this man after the juvenile court has taken him into its own facilities.

Justice William H. Rehnquist: But isn't it the one that commences that the initiative of the defendant either, the way it did in Price or in Green.

Mr. Russel Iungerich: I -- it doesn't commence that the initiative of the defendant I would submit that as the footnote in Green, I mean in Price indicates that actually you have an amalgam of interest in the double jeopardy cases but I don't think that's its ever been a preeminent type of thing where you require a waiver other than I think the retrial cases.

Even the retrial cases, I don't think uniformly go off on the question of waiver and indeed I think Green rejected the waiver theory in its analysis.

So that I think that it depends on the particular case as to which one of those interests, lack of finality or limited waiver or the interest of society, which one of those is actually applied in the case.

What I would submit is continuing jeopardy is not a principle that can be solely limited to the retrial case.

The genius of our common law is that we can apply a principle in one area over to a situation in another area where substantially the same policy considerations are valid.

And I think that's the situation we have here with continuing jeopardy because the proceedings did not run there full course until we have this adult proceedings against Mr. Jones in this case.

Justice Harry A. Blackmun: In the capital punishment days in California, you had a bifurcated trial system, didn't you?

Mr. Russel Iungerich: Yes, Your Honor.

Justice Harry A. Blackmun: Do you still have that in some cases?

Mr. Russel Iungerich: Under the new death penalty statutes in California, I --

Justice Harry A. Blackmun: Not at all, do you have it -- do you have --

Mr. Russel Iungerich: I don't, I think that was the exclusive -- what we do at bifurcated trials in the insanity area.

In other words, in insanity, you will have a separate trial on your plea of not guilty by reason of insanity as separate trial, so Your Honor --

Justice Harry A. Blackmun: -- we head up here McGautha against California, --

Mr. Russel Iungerich: Yes, Your Honor.

Justice Harry A. Blackmun: -- the death penalty case.

Was ever a claim made that that was double jeopardy?

Mr. Russel Iungerich: To hold two trials --

Justice Harry A. Blackmun: Yes.

Mr. Russel Iungerich: -- in that situation?

Justice Harry A. Blackmun: Yes.

And put the defendant through the trial --

Mr. Russel Iungerich: I don't ever recall that there was although I -- there has been some District Court attacks that a fifth penalty trial or something like that constitute a double jeopardy.

But --

Justice Harry A. Blackmun: -- join a parallel in this case to that kind of a system?

Mr. Russel Iungerich: I don't think so.

I think that that system is not quite the same situation as we have here because we're not talking about -- well, it may well be because you have a conviction and then a sentence and the jeopardy doesn't run, you have two trials in that situation.

It may be a close parallel but I really haven't considered that as a possibility because of the uniqueness of the death penalty situation.

Thank you.

Chief Justice Warren E. Burger: Very well.

Mr. Walker.

Argument of Robert L. Walker

Mr. Robert L. Walker: Mr. Chief Justice and may it please the Court.

I would like initially to respond just briefly to a couple of questions that you asked my adversary.

First of all, Mr. Justice -- Mr. Chief Justice, in an answer to your question about how many transfers there are actually are in California of the latest statistics from 1972, shall ask if they're available indicate that there are approximately -- there are exactly 509 transfers out of 50,000 delinquency cases so only 1% of the cases result in transfer to adult court.

Secondly, I would resist the characterization of the fitness hearing in California as a duplicate trial.

The cases in the statutes are quite clear in pointing out that a fitness hearing has nothing to do with the minor's guilt or innocence.

Under California law, you're merely attempting to determine first whether the minor is over the age of 16.

Secondly, whether the minor is charged with a criminal law violation, and thirdly, whether the minor would be amenable to the treatment programs or training facilities available to the juvenile court.

In fact, the statute says that a minor cannot be waived on the basis of his guilt or innocence of the crime.

It's not a sole criterion and cannot be used as a criterion for waiver.

Justice William H. Rehnquist: Is that kind of evidence admissible at the fitness hearing?

Mr. Robert L. Walker: At the fitness hearing, there is evidence about -- is admitted sometimes about the nature of the offense.

Commonly, what happens is that the police reports are maybe introduced into evidence because there are no hearsay is admissible to fitness hearing.

So that evidence is admissible but it's admitted solely for the purpose of determining whether the minor is amenable to the juvenile court facilities.

Justice William H. Rehnquist: Can counsel for the juvenile then offer evidence of mitigating circumstances?

Mr. Robert L. Walker: He may well offer evidence of mitigating circumstances, Yes Your Honor.

Chief Justice Warren E. Burger: Do you suggest that the preliminary inquiry could not even hear about the nature of the crime and --

Mr. Robert L. Walker: No, certainly not.

The nature of a crime is relevant but relevant only to the statutory criterion of amenability.

Naturally, if they're dealing with a minor who is charged with a murder or a rape, that's a -- those are relevant facts for the Court would take into consideration.

Justice Potter Stewart: I thought the -- we were told that the case of Jimmy H. in the California Court said that there were three criteria that the Court should consider in dealing with this ultimate statutory standard of amenability and one was the serious of -- seriousness of the offense, two, was the previous record and three was just basic amenability to juvenile corrective procedures. Did I mistook -- did I misunderstand?

Mr. Robert L. Walker: That's an incorrect characterization of the case in my point of view Your Honor.

The Supreme Court of California said in Jimmy H. that the only evidence that must be considered by the Court at the fitness hearing is a probation report containing the minor's previous record.

There were a number of other factors including expert testimony, details about the nature of offense, but those the Court said are relevant only to question of amenability.

Justice Lewis F. Powell: Before you go on, do I understand your position to be that at the fitness hearing or the transfer hearing that no evidence may be introduced as to quilt or innocence?

Mr. Robert L. Walker: No.

There may be some evidence of the nature of the crime which may also bear upon the minor's guilt or innocence.

That evidence will be taken into consideration by the Court solely in connection with the statutory standard of amenability.

There is a requirement in California law that if a minor is transferred, he must be given a preliminary hearing within 10 days so the minor would be entitled to that procedural protection under California statutory law.

Justice Lewis F. Powell: The minor is entitled to counsel at the transfer hearing?

Mr. Robert L. Walker: Yes, he is.

Justice Lewis F. Powell: And suppose counsel insists on putting an evidence of the minor's innocence, is he entitled to do it?

Mr. Robert L. Walker: I'm not sure it has ever come up in a case.

I suppose in most cases the court would hear although technically perhaps it might be considered almost irrelevant.

This minor has been placed in jeopardy in two quite different respects.

First of all, he's been tried twice, the very same offense and this -- there's no dispute about and our basic position is and I think this is confirmed by numerous opinions of this Court that a Double Jeopardy Clause protects a defendant and let us not forget that this is a convicted defendant, a minor who's been convicted of a felony, although the Double Jeopardy Clause protects the defendant against possibility of two prosecutions for the same offense.

Quite irrespective of the penalties that might be opposed, he suffered the anxiety, the insecurity, the expense, etcetera of two trials for the very same crime.

Secondly, he was exposed to a considerably more severe penalty at the conclusion of his felony trial.

The maximum penalty that could be imposed by the juvenile court in this case was to commit the minor to the California Youth Authority until age 21.

The maximum penalty that he faced in his adult trial on the other hand was a mandatory sentence of from five years to life imprisonment.

So he is certainly in a position of having faced a very severe jeopardy in terms of the penalty that could be imposed by the adult court.

Now, in this case, the adult court shows to commit him to the California Youth Authority and it's quite incorrect to believe that that means that he has the same sentence as an adult that he would have had as a juvenile.

As a juvenile, he could only be held by the Youth Authority until age 21, as a convicted felon, he may be held by the Youth Authority until age 25.

At present time, the minor is on parole, from the Youth Authority, he is 22 and a half years of age.

If indeed he had been sent there by the Youth Authority, he would already be free, excuse me, by the juvenile court, he would be free of the juvenile court's jurisdiction.

There's another aspect in which he's been exposed not only to a more severe punishment but in fact a double punishment and that is, he has been held in juvenile hall for approximately three extra weeks as a result of his totally unnecessary jurisdictional hearing in juvenile court.

Under California Law, he will receive no credit and has received no credit towards his commitment in the Youth Authority.

So, we have three different respects in which this minor has been placed in jeopardy.

Mr. Justice Rehnquist, you asked the question of my colleague over here before about whether a minor could be transferred after an acquittal.

I think that that question is open under California law but I would point out that there's nothing in the transfer statute that precludes that.

And as far as I know, there is no California case that is directly on point.

Justice William H. Rehnquist: I suppose it wouldn't be technically a transfer as a part of the juvenile process, it would be the District Attorney filing de novo in the Superior Court.

Mr. Robert L. Walker: Probably.

Justice William H. Rehnquist: Richard M.

Mr. Robert L. Walker: Richard M. was a case where the minor obtained an acquittal in juvenile court and they attempted to retry him in juvenile court.

Justice William J. Brennan: And that was double jeopardy?

Mr. Robert L. Walker: That was double jeopardy under both the federal and state constitutions.

I would point out that --

Chief Justice Warren E. Burger: We'll resume about the point in the morning.

Justice William J. Brennan: Mr. Walker, I'm not certain whether under the California system, there might be a transfer proceeding without first having an adjudicatory proceeding, may there or not?

Mr. Robert L. Walker: Oh, certainly.

Justice William J. Brennan: Does that happen?

Mr. Robert L. Walker: Yes.

As a matter of fact, in 1972 the California Supreme Court in a case called Donald L. , which is cited in our brief, stated that the preferred practice in California is to hold a fitness hearing before the adjudicatory hearing.

So, not only does that happen, that is now the customary practice in California.

It is not required as a matter of statutory law, but in the great majority of cases pursuant to that California Supreme Court decision that is --

Justice William J. Brennan: Well, when that practice is followed, does that avoid this --

Justice Byron R. White: Well, doesn't if they keep jurisdiction and then adjudicate them, and then they use authority rejects it, turns them back.

Mr. Robert L. Walker: Well, that doesn't bear on the question of whether the fitness hearing should come before or after the jurisdictional hearing.

Justice Byron R. White: Exactly but having it before doesn't cure that problem.

Mr. Robert L. Walker: No, that's a separate problem.

Justice William J. Brennan: No, but if you have the fitness hearing and it's decided at the fitness hearing to transfer, then there's never any adjudication?

Mr. Robert L. Walker: That's correct.

There's never an adjudication and --

Justice William J. Brennan: And then we don't have this double jeopardy problem?

Mr. Robert L. Walker: Correct.

Justice William J. Brennan: Well then why, what I'm trying to get to, why should we ever have a double jeopardy problem?

Why don't they always have the fitness hearing first?

Mr. Robert L. Walker: I think they should always have the fitness hearing first.

It just so happens that in this case, they decided to hold the jurisdictional hearing first.

I don't think there's any justification for that procedure.

As a matter of fact, Mr. Justice Brennan, the -- all of the authorities in the juvenile area including the National Council and juvenile court judges, the National Council in Crime and Delinquency and all of the model statutes and Acts which addressed this question state that the preferred practice from the standpoint of the best procedure for the juvenile and for the juvenile court is to hold the fitness hearing first.

Justice William J. Brennan: I take it that the fitness hearing, if he's had a prior record, the judge who presides at the fitness hearing learns of the prior record?

Mr. Robert L. Walker: That is true.

Justice William J. Brennan: And then suppose, he decides not to transfer him and then proceeds to the jurisdictional hearing knowing of the fellow's past record, are any problems raised by that?

Mr. Robert L. Walker: Yes.

What the California Supreme Court has said in that instance is that the judge must disqualify himself --

Justice William J. Brennan: And transfer to another jury?

Mr. Robert L. Walker: -- and that is not a serious problem in California nor is it a serious problem in most jurisdictions.

In California, the juvenile court is just a branch of the superior court, so it's a very simple matter for another superior court judge to come in and hear the matter.

Justice Potter Stewart: Surely there must be counties up on the -- those northern counties near state though that don't have so many superior court judges in the county?

Mr. Robert L. Walker: That is correct.

There are some smaller counties that might only have one superior court judge.

Justice Potter Stewart: Right.

Mr. Robert L. Walker: However, in California we have a procedure where a superior court judge can be affidavit -- excuse me, can be disqualified without cause, and so it's very common for judges from adjoining counties to come in and sit on those cases.

Justice William H. Rehnquist: But that is something of a burden in counties like the CRR counties and places where you only have one superior court judge?

Mr. Robert L. Walker: Yes.

There's no question that it would be a burden.

I don't think that it would be an insuperable burden or even a considerable burden.

I doubt that those counties account for very many transfer hearings.

As I mentioned yesterday, only 1% of the delinquency cases result in transfer and the great majority of those cases comes from the urban counties.

Justice Potter Stewart: We're talking about cases in which there's not a transfer.

We're talking about the 99% of the cases where there's --

Mr. Robert L. Walker: Wherever --

Justice Potter Stewart: -- jurisdictional hearing and not a transfer.

Mr. Robert L. Walker: Correct.

Justice Potter Stewart: I mean, a transfer hearing and not a transfer hearing.

Mr. Robert L. Walker: Yes, but my statement would also apply to both cases as well.

Justice Potter Stewart: Well, except its 99%, not 1%.

Mr. Robert L. Walker: Well no.

I don't think that's true.

The 99% of the cases would not involve transfer hearings.

There's a very, very small percentage of the cases in California in which there's a transfer hearing because for example a minor must be over the age of 16.

If any minor's over the age of 16, there cannot be a transfer hearing.

Justice Potter Stewart: If he's under 16.

Mr. Robert L. Walker: Under 16, excuse me.

And in addition, in most cases where a minor is not charged with a serious offense where he does not have a previous record, a transfer would not even be considered as a possibility.

Justice William H. Rehnquist: Do you have any statistics as to the percentage of total juvenile cases and the percentage of -- in those that have transfer hearings?

Mr. Robert L. Walker: Unfortunately, the only statistics we have go to the number of cases that are actually transferred.

Justice William H. Rehnquist: Rather than where they have the hearing, isn't it?

Mr. Robert L. Walker: That's correct.

There was one point which came up during argument yesterday that I think bear us some clarification.

We are not contending of course that the jeopardy attached at the fitness hearing.

We're saying the jeopardy attached at the trial in the juvenile court, which is called the jurisdictional hearing, and at the trial in the adult court.

And of course this Court has held in Collins against Loisel that jeopardy does not attach at a preliminary hearing because that hearing does not involve an adjudication of guilt.

Similarly, jeopardy would not attach at a fitness hearing, nor would jeopardy attach for example at a penalty hearing in a death penalty case because that hearing would be in the nature of a sentencing or disposition hearing, rather than an adjudicatory hearing.

This does not mean that evidence relating to the offense would be inadmissible to fitness hearing.

It simply means that that evidence would be only relevant to the question of whether the minor should be retained in the juvenile system, or transferred to the adult system.

Now, petitioner relies quite heavily upon this so called theory of continuing jeopardy.

And as I understand that theory, it insists that the initial proceeding must culminate in a final disposition of the case before a second jeopardy could attach in the second prosecution.

Now, just yesterday in opinion issued by this Court, United States against Jenkins, this Court in a unanimous opinion rejected the broad type of continuing jeopardy theory which has been espoused by petitioner and stated that that theory which was originated in a dissenting opinion by Justice Holmes in the Kepner case, has never been adopted by a majority of this Court.

Justice William H. Rehnquist: But in Kepner though, the person had been found innocent originally, hadn't he?

Mr. Robert L. Walker: That is correct.

That was an appeal from an acquittal.

But I think that the reasoning of Kepner and of a number of the other cases involving the continuing jeopardy principle demonstrate that that principle is limited to a situation where the prosecution -- excuse me, where the defendant has appealed.

And where there has been a reversal on appeal and where there is a re-prosecution after that reversal.

That is not the same situation as we have in this case.

Garry Jones did not ask to be retried in adult court.

It's certainly arguably fair in the case of -- a case where the defendant actually asks for his prosecution to be reversed for the people to vindicate their rights by retrying him if indeed he does obtain the reversal which he sought.

But here, we have an entirely different situation, the case where the reversal was not initiated or sought by the defendant.

Now as I --

Justice Byron R. White: I gather the California Supreme Court has adopted the continuing jeopardy theory, at least for the purposes of the California Constitution.

And also in Brian ruled on it for purposes of the Federal Constitution?

Mr. Robert L. Walker: Yes, that's true.

They have accepted the continuing jeopardy theory in this context.

Now, it seems to me that the continuing jeopardy theory, at least this broad type of continuing jeopardy theory espoused by petitioner, is inconsistent with a number of decisions by this Court in a whole line of cases where this Court has held that where an initial prosecution is aborted for example by a mistrial brought about by the prosecutor, or improperly by the court that they are -- even though there has not been a final culmination of the initial proceeding, nevertheless jeopardy attaches for the purpose of barring a second prosecution.

If this Court were to reverse the Ninth Circuit in this case, I would suggest that it would be undermining a number of decisions and very basic policies that are fundamental to double jeopardy protection.

Justice William J. Brennan: Well, Mr. Walker though all those cases of course are adult cases.

I take it our approach to the application of juvenile system of some of the guarantees that otherwise are applied to the -- in cases in adult prosecutions.

We have to take into account, don't we, the special values of the juvenile system and the extent of which applying those double jeopardy principles to the juvenile system may impair its effectiveness?

Mr. Robert L. Walker: Well, I'm not certain that you have to take that into account for the reason that this --

Justice William J. Brennan: Well, we certainly did as to the jury trial in McKeiver.

Mr. Robert L. Walker: Yes.

Justice William J. Brennan: And Winship suggested that, didn't it?

Mr. Robert L. Walker: Yes.

The difference between this case and Winship call to McKeiver is that in this case, the minor has been convicted in adult court of a felony and suffers from all the disabilities of a felony conviction than any other person in California would suffer whether he's a juvenile or an adult which --

Justice William J. Brennan: Well, I'm thinking particularly the determination whether or not we should or shouldn't, for this purpose, adapt the continuing jeopardy theory.

Mr. Robert L. Walker: Well, what I'm suggesting Mr. Justice Brennan is that if you adapted a continuing jeopardy theory in this case, on the theory that this is a juvenile case that I think you would of necessity, it would also be applied in the adult court context, because this minor suffers all of the same disabilities for any adult would suffer who has been convicted of a felony.

Under California law, Garry Jones for example, cannot have his record sealed to where as if you were adjudicated delinquent, he would have a right to have that adjudication --

Justice Byron R. White: But your California court thought that holding in Brian, thought that saying that there was jeopardy and this sort of a situation would undermine the juvenile system in the sense that judges would be less more likely to transfer to adult courts, and to direct out of the juvenile system more a larger percentage of juvenile cases.

Mr. Robert L. Walker: I agree that the California Supreme Court made that statement.

I would suggest, Mr. Justice White, that that --

Justice Byron R. White: Well, you know more about how your system works than we do.

Mr. Robert L. Walker: Yes.

But it's the same California Supreme Court, which interestingly enough, held that Donald L. that the procedure that we're advocating is preferred procedure.

I would suggest for that statement in Brian was colored by the --

Justice Byron R. White: Well, I think that's consistent and I think that's consistent enough, just because this would be the preferred procedure and you have to hold the transfer hearing first, wouldn't avoid the double jeopardy problem that arose in Brian.

Mr. Robert L. Walker: Right.

I think that the California statement in Brian really was founded upon the peculiar factual situation where a minor had actually consent of the California Youth Authority, and was transferred back to juvenile court because they decided he -- they didn't have enough time to rehabilitate him and he was incorrigible.

And then they decided even though he had already begun his treatment program as a juvenile to transfer him for another prosecution.

Now, I would suggest for that that's perhaps an even more flagrant violation of a double jeopardy guaranteed than we have in this case.

Justice Byron R. White: Well, I think you would, yes.

And I would also think that however if you upheld that, this one would be a fortiori.

Mr. Robert L. Walker: Yes, I agree.

I obviously don't agree with the Brian decision.

But turning to some of these policy reasons concerning the juvenile court, which you brought up Mr. Justice Brennan, it's our position that if you apply the double jeopardy protection in this context, you will actually be enhancing the fundamental fairness of the juvenile court system.

Whereas in McKeiver, this Court felt that that system would be threatened.

For one thing, this Court has frequently emphasized the absolute necessity of a juvenile court system operating in an informal manner.

And by an informal manner, I think that what was meant was that in most juvenile cases, the juvenile if he's indeed guilty will come in and admit his transgression.

There will not be even the necessity of a formal adversary hearing with counsel and all the other trappings.

And then the Court will get on with its primary business, which it is to rehabilitate the juvenile.

Now, that policy goal of informality is really largely frustrated.

If the juvenile contests the petition and decides to stand trial, in that case, he will be represented by counsel.

It will be a formal adversary hearing.

Now, I would point out that if you hold the jurisdictional hearing first, the minor does not, at that point, know whether he's going to be retained in the juvenile system or ultimately transferred to the adult court system.

So he will, as a consequence, be extremely reluctant to admit his guilt.

As a result of that admission, he may later find himself in state prison.

Indeed the volume on juvenile court practice, which has been published by the California State Bar to advice juvenile court practitioners on how to handle these kinds of cases, advises counsel not to encourage the minor to talk freely with the probation officer until he knows whether the juvenile will be retained in the juvenile system or transferred.

So that policy goal will be totally frustrated if you don't hold the fitness hearing first.

Secondly, the juvenile will be kept in a continuing state of anxiety, insecurity, unless you hold certification hearing or a transfer hearing initially.

We believe that from the rehabilitative point of view it's extremely vital that the juvenile know whether he's going to be treated as a juvenile or as an adult.

Certainly, this Court has found that the appearance as well as the actuality of fairness is crucial in terms of the rehabilitation of a juvenile.

And from a standpoint of a minor, he can't very well feel that he is being dealt with fairly if he is being exposed to a double prosecution, which he knows has been held to be repugnant in the case of even the most hardened criminals.

Chief Justice Warren E. Burger: But in this fitness hearing, is the juvenile not going to be reticent about discussing the details of his conduct for fear if he does discuss it, it will lead to his transfer?

Mr. Robert L. Walker: That's a possibility.

Chief Justice Warren E. Burger: Isn't it a very great likelihood more than a possibility?

Mr. Robert L. Walker: Well if --

Chief Justice Warren E. Burger: If he thinks that the truth of the matter will have an adverse impact on the judge in terms of making the decision to send him to an adult court.

If he is either very bright or well advised, he's not going to talk, isn't that right?

Mr. Robert L. Walker: That may be true.

But I would hasten to point out that after that fitness hearing is conducted, and if the judge determines to retain the minor in the juvenile system, then the minor will rather freely in most instances, discuss his case with the juvenile probation officer or with the judge.

Chief Justice Warren E. Burger: After the decision on fitness has been made.

Mr. Robert L. Walker: Right and the fitness -- the decision on fitness would be made at a very early point in the proceeding.

As I pointed out, it is not a full trial and normally it could be made rather soon after the juvenile is taken into custody by the probation department.

Justice Lewis F. Powell: Mr. Walker, I still can't quite visualize how you avoid having what in effect is a full adversary trial if the juvenile and his counsel wished to have it.

I think you agreed yesterday, he would be entitled to counsel.

You're representing the juvenile at a fitness hearing, the juvenile persuades you that he didn't commit whatever the offense may be with which he is charged.

If you do your duty as a lawyer, wouldn't you try to produce witnesses to satisfy the juvenile judge if you thought there was a chance of transfer that he had not committed the offense and wouldn't the state then put on his witnesses to refute your testimony, and wouldn't it all end up being an adversary hearing?

Mr. Robert L. Walker: I -- no, Mr. Justice Powell, I do not believe so.

I have seen a number of transcripts from California where indeed the juvenile's counsel has put on some evidence.

But that evidence normally will be character witnesses or evidence about the juvenile's rehabilitation.

Occasionally, in a rare case, counsel may even produce someone from California Youth Authority to testify that this juvenile can be dealt with as a juvenile, is extremely rare and unusual.

In fact, I've never seen the case in California where a juvenile would put on a defense at the fitness hearing.

For one thing, he realizes that he will have an opportunity to put on that defense later.

And he doesn't want to tip his hand, so to speak, to reveal his entire defense to the prosecution at that early stage.

I've even seen case where the Court has refused to hear evidence going to a jurisdictional fact stating that that was irrelevant under California law.

Justice Lewis F. Powell: If a judge took that position, would that nullify the effectiveness or the validity of the transfer hearing?

Suppose the judge just said “I'm not going to hear any evidence that pertains to whether or not the juvenile committed the offense.”

Well I think that some -- I don't think it would negate it.

I think there's still the question of the juvenile's particular amenability to treatment programs available through the juvenile court.

I think that in most instances, the judge would allow in some evidence pertaining to the crime such as he may want to consider whether the crime was of a particularly heinous character, or whether it's a very serious type of offense.

But in most instances, the judge will say “If the juvenile is charged with murder, he's charged with a robbery or rape,” that's a serious crime and that's enough from the standpoint of the California statute.

I point out in California, if the legislature has not written a probable cause requirement into the fitness statute, which they could've done, which has been done in some states.

Justice William J. Brennan: But what's the practice Mr. Walker?

Surely, there must be some evidence before this determination that he's to be transferred that he did commit some crime, isn't it?

Mr. Robert L. Walker: The evidence that normally is introduced is police report.

Occasionally, there might be some other evidence.

The police report is admissible to fitness hearing in California because hearsay is allowed to come in.

Justice William J. Brennan: Well, what does that establish?

Mr. Robert L. Walker: That establishes so and so, you know, says --

Justice William J. Brennan: Nothing more than just a charge, isn't it?

Mr. Robert L. Walker: That's correct.

And normally, in California that's considered to be sufficient.

This may seem to be a peculiar procedure, but it is a procedure which is adapted in the great majority of jurisdictions, which only three jurisdictions in the entire United States require a showing of delinquency prior to a transfer.

And there are some other jurisdictions which require a showing of probable cause.

But the great majority of jurisdictions require neither at the fitness hearing.

Justice Potter Stewart: How many jurisdictions in addition to California provide for a transfer hearing after a filing of delinquency?

Mr. Robert L. Walker: Well, there are three jurisdictions which require the delinquency hearing be held first; Massachusetts, West Virginia and Alabama.

There are 19 jurisdictions that require the fitness hearing to be held first.

And it's a little bit questionable about what is required in the other jurisdictions.

Justice Potter Stewart: But the others seem to be like California.

They permit it either -- permit it either to come in either order?

Mr. Robert L. Walker: Permit it either way.

However, it would seem first of all from the absence of cases challenging procedure on double jeopardy grounds.

And also from the fact of the legislatures have not even required in some jurisdictions, a probable cause requirement, or another jurisdictions, the delinquency finding.

But the usual practice in those jurisdictions is to hold the fitness hearing first.

And that's recommended, as I've said, by all of legal commentators except one, and by all of the model codes.

Justice Potter Stewart: The writer of the article in the University of Toledo Law Review disgracefully --

Mr. Robert L. Walker: That is the one commentator that I was referring to, yes, Professor Karr.

Justice Byron R. White: Just so I have it straightened up.

When do you say that the jeopardy attaches here, at the beginning of the hearing or at the end of it, or when he was adjudicated?

Mr. Robert L. Walker: Well, our position is, the jeopardy attaches at the jurisdictional hearing in juvenile court when the first witness is sworn and begins to testify.

And that likewise --

Justice Byron R. White: That's at the adjudicatory hearing?

Mr. Robert L. Walker: Right, the adjudicatory hearing.

And that jeopardy then attaches in the criminal proceeding also when the first witness has sworn and begins to testify.

Justice Byron R. White: But the -- it wouldn't -- so the judge, if he even starts the adjudicatory hearing, according to you, must either keep him in juvenile court or dismiss him?

Mr. Robert L. Walker: That's right.

And the experts tell us that there's absolutely no reason why that decision can't be reached before the adjudicatory hearing.

And as I've pointed out, this is the practice in 19 of the 22 jurisdictions which require of a hearing to be held at either one point or another.